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June 26 --In an opinion that might affect the validity of National Labor Relations Board rulings on the use of social media in the workplace, the U.S. Supreme Court concluded unanimously June 26 that President Barack Obama lacked the authority to make recess appointments to the NLRB in January 2012 because he acted when the Senate was holding pro forma sessions and wasn't legally in a “recess”.

The Supreme Court, however, divided 5-4 on questions about the power of Obama and future presidents to make recess appointments to positions that normally require the advice and consent of the Senate. Writing for the majority, Justice Stephen G. Breyer said the president may make appointments without Senate confirmation during recesses that occur either during or outside of Senate sessions, and is not limited to filling vacancies that come into being during a recess.

“This decision is potentially far reaching, as it casts doubt on hundreds of decisions issued by the NLRB during the time it lacked a quorum to act,” including decisions that “curtailed employers' regulation of social media,” Joshua B. Gessling, an associate at Kahn, Dees, Donovan & Kahn LLP, in Evansville, Ind., said in a June 26 blog post.

But James M. Shore, a partner at Stoel Rives LLP, in Seattle, said in a June 26 blog post that despite the Supreme Court's ruling that may call into question the validity of certain board decisions, the NLRB “General Counsel's continued position on social media” remains “sobering for employers.”

Concerted Activity Protection

On Jan. 4, 2012, Obama appointed Sharon Block (D), Terence F. Flynn (R), and Richard F. Griffin Jr. (D) to the NLRB during a time when the Senate was holding only pro forma sessions.

In September 2012, an NLRB panel, which included Block, affirmed that a car dealer legally terminated an employee over photos and sarcastic commentary he posted on Facebook .

In December 2012, an NLRB panel that included Griffin and Block ruled that an NLRB administrative law judge properly found a Buffalo, N.Y., company had violated the National Labor Relations Act, 29 U.S.C. § 151, by firing five employees for posting Facebook comments regarding a co-worker's criticism of their job performance .

The ruling was based on the concerted activity provision of the NLRA that protects the right of both union and nonunion employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

In April 2013, an NLRB panel that included Griffin and Block affirmed that a clothing sales company unlawfully fired employees who used Facebook to discuss complaints about their supervisor's conduct and their work-related concerns, rejecting the employer's claim it was tricked into firing the workers (12 PVLR 741, 4/29/13).

Also in April, Griffin and Block sat on the NLRB panel that ruled Target Corp. violated the NLRA by maintaining store policies that included a “Use Technology Appropriately” policy that limited employee use of social media (12 PVLR 783, 5/6/13).

Despite the Supreme Court's ruling that may call into question the validity of certain board decisions, the NLRB “General Counsel's continued position on social media” remains “sobering for employers.”

James M. Shore, PartnerStoel Rives LLP, Seattle

General Counsel's Approach

In July 2013, Lafe E. Solomon, at the time acting general counsel of the NLRB, said that the surprise of his tenure had been criticism directed at him for applying the NLRA with regard to social media .

Solomon has issued three guidance memoranda on social media in the workplace, most recently in May 2012 (11 PVLR 888, 6/4/12).

Former board member Griffin was confirmed as NLRB general counsel in October 2013.

The general counsel's office July 18 released an advice memorandum stating that grocer Giant Food LLC could include in its social media guidelines a prohibition on employees disparaging its products and services, but not a broad ban on the use of confidential information .

Not all social media commentary by workers has been found to be protected activity. A medical office worker who posted critical or derogatory comments about her employer and supervisors during a Facebook conversation with other employees was not protected against discharge and was not illegally fired, the NLRB's Division of Advice concluded in a memorandum to regional offices released May 17 (12 PVLR 905, 5/27/13).

Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined in the majority opinion. Justice Antonin Scalia, joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr., concurred in the judgment but wrote separately and disagreed with much of the majority's reasoning.

To contact the reporters on this story: Donald G. Aplin in Washington at daplin@bna.com; Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Katie W. Johnson at kjohnson@bna.com

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